GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION LAW 2015-250
HOUSE BILL 792
AN ACT to protect the public from revenge posting online by making it a criminal offense to disclose certain images in which THERE IS A REASONABLE EXPECTATION OF PRIVACY AND TO MAKE INDECENT EXPOSURE THAT OCCURS ON PRIVATE PREMISES A CRIMINAL OFFENSE.
The General Assembly of North Carolina enacts:
SECTION 1. Article 26 of Chapter 14 of the General Statutes is amended by adding a new section to read:
"§ 14‑190.5A. Disclosure of private images.
(a) Definitions. – The following definitions apply in this section:
(1) Disclose. – Transfer, publish, distribute, or reproduce.
(2) Image. – A photograph, film, videotape, recording, digital, or other reproduction.
(3) Intimate parts. – Any of the following naked human parts: (i) male or female genitals, (ii) male or female pubic area, (iii) male or female anus, or (iv) the nipple of a female over the age of 12.
(4) Personal relationship. – As defined in G.S. 50B‑1(b).
(5) Reasonable expectation of privacy. – When a depicted person has consented to the disclosure of an image within the context of a personal relationship and the depicted person reasonably believes that the disclosure will not go beyond that relationship.
(6) Sexual conduct. – Includes any of the following:
a. Vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted.
b. Masturbation, excretory functions, or lewd exhibition of uncovered genitals.
c. An act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a nude person or a person clad in undergarments or in revealing or bizarre costume.
(b) Offense. – A person is guilty of disclosure of private images if all of the following apply:
(1) The person knowingly discloses an image of another person with the intent to do either of the following:
a. Coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.
b. Cause others to coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.
(2) The depicted person is identifiable from the disclosed image itself or information offered in connection with the image.
(3) The depicted person's intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image.
(4) The person discloses the image without the affirmative consent of the depicted person.
(5) The person discloses the image under circumstances such that the person knew or should have known that the depicted person had a reasonable expectation of privacy.
(c) Penalty. – A violation of this section shall be punishable as follows:
(1) For an offense by a person who is 18 years of age or older at the time of the offense, the violation is a Class H felony.
(2) For a first offense by a person who is under 18 years of age at the time of the offense, the violation is a Class 1 misdemeanor.
(3) For a second or subsequent offense by a person who is under the age of 18 at the time of the offense, the violation is a Class H felony.
(d) Exceptions. – This section does not apply to any of the following:
(1) Images involving voluntary exposure in public or commercial settings.
(2) Disclosures made in the public interest, including, but not limited to, the reporting of unlawful conduct or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, medical treatment, or scientific or educational activities.
(3) Providers of an interactive computer service, as defined in 47 U.S.C. § 230(f), for images provided by another person.
(e) Destruction of Image. – In addition to any penalty or other damages, the court may award the destruction of any image made in violation of this section.
(f) Other Sanctions or Remedies Not Precluded. – A violation of this section is an offense additional to other civil and criminal provisions and is not intended to repeal or preclude any other sanctions or remedies.
(g) Civil Action. – In addition to any other remedies at law or in equity, including an order by the court to destroy any image disclosed in violation of this section, any person whose image is disclosed, or used, as described in subsection (b) of this section, has a civil cause of action against any person who discloses or uses the image and is entitled to recover from the other person any of the following:
(1) Actual damages, but not less than liquidated damages, to be computed at the rate of one thousand dollars ($1,000) per day for each day of the violation or in the amount of ten thousand dollars ($10,000), whichever is higher.
(2) Punitive damages.
(3) A reasonable attorneys' fee and other litigation costs reasonably incurred.
The civil cause of action may be brought no more than one year after the initial discovery of the disclosure, but in no event may the action be commenced more than seven years from the most recent disclosure of the private image."
SECTION 1.1. G.S. 1‑54 is amended by adding a new subsection to read:
"(11) No suit, action, or proceeding under G.S. 14‑190.5A(g) shall be brought or maintained against any person unless such suit, action, or proceeding is commenced within one year after the initial discovery of the disclosure, but in no event may the action be commenced more than seven years from the most recent disclosure of the private image."
SECTION 1.5. The Joint Legislative Oversight Committee on Justice and Public Safety shall study the issue of improper disclosure of images of people superimposed onto other images exposing intimate parts or depicting sexual conduct. The study shall include whether any existing crimes or civil actions currently apply and whether G.S. 14-190.5A, as enacted by this act, should be amended to include superimposed images. The Joint Legislative Oversight Committee on Justice and Public Safety shall report its findings and any recommendations to the General Assembly by April 1, 2016.
SECTION 2. G.S. 14‑190.9 is amended by adding a new subsection to read:
"(a2) Unless the conduct is prohibited by another law providing greater punishment, any person who shall willfully expose the private parts of his or her person in the presence of anyone other than a consenting adult on the private premises of another or so near thereto as to be seen from such private premises for the purpose of arousing or gratifying sexual desire is guilty of a Class 2 misdemeanor."
SECTION 2.1. G.S. 14‑190.9 is amended by adding a new subsection to read:
"(a5) Unless the conduct is prohibited by another law providing greater punishment, any person located in a private place who shall willfully expose the private parts of his or her person with the knowing intent to be seen by a person in a public place shall be guilty of a Class 2 misdemeanor."
SECTION 2.3. G.S. 14-190.9 is amended by adding a new subsection to read:
"(a4) Unless the conduct is punishable by another law providing greater punishment, any person at least 18 years of age who shall willfully expose the private parts of his or her person in a private residence of which they are not a resident and in the presence of any other person less than 16 years of age who is a resident of that private residence shall be guilty of a Class 2 misdemeanor."
SECTION 3. This act becomes effective December 1, 2015, and applies to offenses committed on or after that date and to actions initiated on or after that date.
In the General Assembly read three times and ratified this the 17th day of September, 2015.
s/ Daniel J. Forest
President of the Senate
s/ Tim Moore
Speaker of the House of Representatives
s/ Pat McCrory
Approved 11:00 a.m. this 25th day of September, 2015